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2016 DIGILAW 932 (CAL)

Mithu Bhar v. State of West Bengal

2016-11-28

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee, J. 1. Permission is accorded to the learned Advocate for the petitioners to amend the cause title of this revisional application. It is to be done in course of this day. 2. This is an application under Section 397 read with Section 401 and Section 482 of the Code of Criminal Procedure wherein the order dated 15th September, 2011 (sic.) passed by the learned Additional Sessions Judge, Sealdah in connection with Criminal Revision No. 64 of 2011 arising out Complaint Case No. 88 of 2008 and thereby dismissing the said revision and confirming the judgement dated 18/08/2011 as passed by the learned Additional Chief Judicial Magistrate, Sealdah in Complaint Case No. 88 of 2008 has been assailed. 3. Vide the impugned order, learned first appellate court directed to deposit by way of bank guarantee to the tune of Rs.4,00,000/- in favour of the opposite party no. 2 and that the learned trial court passed the same order as interim in nature keeping the revisional application pending. Learned first appellate court observed that the revisionist of this case is a habitual defaulter and the said court vide its judgement dated 12/07/2011 while disposing of the Criminal Revision No. 5 of 2010 upheld the judgement and order of conviction passed by the learned Judicial Magistrate, 4th Court, Sealdah in Complaint Case No. 696 of 2010. 4. It is submitted by Mr. Chakraborty, learned Advocate, appearing on behalf of the petitioners that the compensation amount being Rs.3,96,000/- the first criminal revision court passed an excessive order to issue a bank guarantee to the tune of Rs.4,00,000/- and as such, the order ipso facto is to be interfered with by this court exercising special jurisdiction under Section 489 of the Code of Criminal Procedure, 1973. He further submitted that the order passed by the learned first revisional court was passed without taking into consideration the plea of the accused that in the petition of complaint, the name of the Branch was not rightly written, either the cheque number was wrong or the name of the Branch was wrong and these petitioners had no bank account at U.T.I Bank Limited (Axis Bank), Service Branch, Kolkata. He further submitted that the juristic person, Green Fields, has not been made a party. 5. It is submitted by Mr. Chatterjee, learned Advocate, appearing on behalf of the opposite party no. He further submitted that the juristic person, Green Fields, has not been made a party. 5. It is submitted by Mr. Chatterjee, learned Advocate, appearing on behalf of the opposite party no. 2 that this being an interlocutory order, this court cannot pass any order in view of the prescription of the legislature as noted in Section 397(2) of the Code of Criminal Procedure. He further submitted that the impugned order is well-reasoned order as the learned first appellate court was apathetic towards the petitioner/convict as he was habitual defaulter. 6. It may be noted for future reference that the Complaint Case No. 88 of 2008 was filed regarding dishonour of cheque dated 9th October, 2007 and on completion of evidence, learned trial court was pleased to pass an order of conviction against the accused directing him to pay Rs.3,96,000/- but unfortunately no substantive sentence was imposed under Section 138 of the N.I. Act, 1981. 7. Mr. Chatterjee further submitted that even if Rs.4,00,000/- as bank guarantee is found to be excessive, then the only recourse left open to the present petitioner is to thrash the matter before the first revisional court and the second revisional application is not maintainable under Section 397(2) of the Code of Criminal Procedure. 8. I have taken stock of the situation, noted the arguments advanced by the learned Advocates appearing on behalf of the parties. This court is satisfied that the order impugned is an interlocutory order and this revisional application on that ground is ipso facto barred under Section 397(2) of the Code of Criminal Procedure. Regarding the other argument of Mr. Chakraborty, I direct the learned first appellate court to take into consideration the points which may be urged before that court as ventilated before this court and the said court will be at liberty to dispose of the matter before it in free mind without being influenced whatsoever by any observation made by this court. Regarding the direction by the court below for bank guarantee to the tune of Rs.4,00,000/- is not being considered by this court to be fabulous amount considering the fact that the compensation as awarded was to the tune of Rs.3,96,000/-. 9. Be it further noted that Section 138 of the N.I. Act, 1981 contemplates substantive imprisonment also and learned trial court must keep this matter in mind while disposing of the Criminal Revision no. 9. Be it further noted that Section 138 of the N.I. Act, 1981 contemplates substantive imprisonment also and learned trial court must keep this matter in mind while disposing of the Criminal Revision no. 64 of 2011. 10. Learned Revisional Court is directed to dispose of this revisional application which is pending since 2011 within six months from the communication of this order. 11. C.R.R. 3233 of 2011 is, thus, disposed of. 12. Office is directed to communicate this order to the learned trial court by Special Messenger at the cost of the court. 13. Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.